PER CURIAM: We granted the State’s petition for a writ of
certiorari to review the grant of post-conviction relief (PCR). We now reverse.

FACTS

Respondent Gantt was convicted and sentenced for first degree criminal sexual
conduct, kidnapping, armed robbery, grand larceny of a vehicle, possession of
crack cocaine, and resisting arrest. These convictions all stemmed from a single
incident.

The thirty-one-year-old victim (Victim) testified she was cleaning
her car at a car wash when respondent approached her from behind, put a gun
to her back, and demanded her money and jewelry. After she complied, he threatened
to kill her if she screamed and told her to get in the car. They drove to a
wooded area where respondent raped Victim in the front seat of the car and threw
the used condom out the car window.

Respondent then had Victim drive
to a bank to withdraw money for him. When Victim asked a teller for help, respondent
drove off in Victim’s car leaving her at the bank. Victim took police to the
scene of the rape where an officer recovered the used condom. The DNA profile
recovered from the semen in the condom matched respondent’s.

Respondent was arrested the same day. He was in Victim’s car, a
gun was in the car, [1] and he had a piece of crack cocaine in his
pocket. He fought with the arresting officers.

At trial, respondent
testified that he met Victim at a crack house and she agreed to have sex with
him in exchange for crack. They had consensual sex in her car then drove to
the bank so she could withdraw money to buy more crack. Victim was acting paranoid
from the drugs so respondent followed her into the bank. When she was belligerent
to him, he left in her car.

Shortly after respondent’s
arrest, Officer Davis went to the jail with a search warrant to obtain blood,
saliva, and hair from respondent. Officer Davis testified that respondent refused
to cooperate at that time. The samples were subsequently taken pursuant to
court order. Respondent testified he initially refused to cooperate because
he wanted his lawyer present. Evidence corroborated that respondent willingly
gave the requested samples when presented with the proper order.

On appeal, respondent
claimed the trial judge erred in allowing evidence of his refusal to cooperate
because the search warrant was invalid under S.C. Code Ann. § 17-13-140 (2002).
In an unpublished opinion, the Court of Appeals declined to address the issue
because there was no objection to the validity of the search warrant.

Respondent subsequently
brought this PCR action claiming counsel was ineffective for failing to object
to the search warrant’s validity.
[2] The PCR judge found counsel was ineffective and respondent was prejudiced
because the State used the evidence of respondent’s non-compliance as evidence
of his guilt.

ISSUE

Was respondent prejudiced
by evidence that he refused to comply with the search warrant?

DISCUSSION

A lawful arrest does not in itself
justify a warrantless search that requires bodily intrusion. The Fourth Amendment
protects against intrusions into the human body for the taking of evidence absent
a warrant unless there are exigent circumstances such as the imminent destruction
of evidence. [3] Schmerber v. California, 384 U.S. 757
(1966); see also State v. Dupree, 319 S.C. 454, 462 S.E.2d 279
(1995) (applying Schmerber analysis to search of suspect’s mouth). Where
blood is needed only to determine blood type to match existing evidence as here,
a warrant must be obtained even though there has been a lawful arrest.

A warrant allowing a bodily intrusion
must comply with § 17-13-140 [4]
and requires the following: 1) a finding there is a clear indication that material
evidence of guilt will be found; 2) a finding the method used to secure the
evidence is safe and reliable; and 3) a balancing of the seriousness of the
crime, the importance of the evidence, and the unavailability of less obtrusive
means against the right to be free from bodily intrusion. State v. Register,
308 S.C. 534, 419 S.E.2d 771 (1992); In re: Snyder, 308 S.C. 192, 417
S.E.2d 572 (1992). The search warrant in this case did not meet these requirements.

Respondent’s refusal to comply
with an invalid search warrant was essentially a refusal to comply with a warrantless
search. We have held under Doyle v. Ohio, [5] the prosecution may not comment
on the accused’s refusal to comply with a warrantless search. Simmons v.
State, 308 S.C. 481, 419 S.E.2d 225 (1992). [6] Had trial counsel
challenged the validity of the search warrant, respondent could have objected
to evidence that he refused to comply. Counsel was therefore ineffective in
failing to challenge the search warrant’s validity.

An applicant for PCR, however,
must show prejudice from counsel’s deficient performance. Patrick v. State,
349 S.C. 203, 562 S.E.2d 609 (2002). When a Doyle violation has occurred,
as alleged here, we will consider the following factors in determining prejudice
on PCR: 1) whether the reference to the accused’s exercise of his constitutional
right was a single reference; 2) whether the State tied the exercise of this
right directly to the accused’s exculpatory account; 3) whether the accused’s
exculpatory account was totally implausible; and 4) whether the evidence of
guilt was overwhelming. McFadden v. State, 342 S.C. 637, 539 S.E.2d
391 (2000).

As argued by the solicitor in
closing, this case turned on credibility. The evidence that respondent kidnapped
and raped Victim was not overwhelming in contrast to respondent’s exculpatory
account of a consensual encounter. The reference to respondent’s refusal to
comply with the search warrant, however, was only a single reference and was
not tied to respondent’s guilt. The solicitor’s entire colloquy with Officer
Davis was:

Q: What was [respondent’s] response to you in the request for these
samples?

A: That he did not want to do it.

Q: Did he refuse?

A: Yes, sir.

In argument, the solicitor referred
once to respondent’s refusal in the context of “he knew his rights” when police
arrived with the search warrant, but the solicitor did not argue this refusal
as evidence of guilt.

We find respondent failed
to make the requisite showing that there is a reasonable probability the result
of the trial would have been different but for counsel’s error. Patrick
v. State, supra. Because there is no evidence supporting the PCR
judge’s finding of prejudice, we reverse.

JUSTICE
PLEICONES: I respectfully dissent. The post-conviction relief (PCR) judge
granted respondent’s application, finding respondent had proven both that his
trial counsel’s performance was deficient and that respondent was prejudiced
by this deficient performance. The majority and I agree that trial counsel
should have objected both to the evidence of respondent’s refusal to comply
with the unlawful search warrant, and to the solicitor’s reference to this refusal
in his closing argument since “it is clearly established that the state cannot,
through evidence or argument, comment on the accused’s exercise of a constitutional
right.” Simmons v. State, 308 S.C. 481, 484, 419 S.E.2d 225, 226 (1992).
Further, since as the majority acknowledges the evidence of respondent’s guilt
was not overwhelming and the case turned on credibility, I would defer to the
PCR judge’s finding that respondent was prejudiced by this deficient performance.
See, e.g., Burnett v. State, Op. No. 25582 (S. C. Sup. Ct. filed
January 13, 2003) (this Court is required to affirm the PCR judge’s findings
where they are supported by anyevidence of probative value).

[1] The
gun was a B.B. gun. The victim testified she knew nothing about guns.

[2]
At the hearing, counsel agreed he was ineffective for failing to preserve
this issue but he believed the outcome of the trial would not have been different.
Counsel’s admission is unlike the testimony of counsel in Martinez v. State,
304 S.C. 39, 403 S.E.2d 113 (1991), where trial counsel admitted the testimony
of a potential witness could have made a difference.

[3] For
example, blood alcohol level is considered evidence subject to imminent destruction.
Schmerber, 384 U.S. at 770-71.

[4] This
section provides generally for the issuance of a search warrant based on probable
cause.

[6] This
holding effectively overruled State v. Middleton, 266 S.C. 251, 222
S.E.2d 763 (1976), which held where the search is refused and therefore not
conducted, there is no fourth or fifth amendment right implicated and testimony
regarding the refusal is admissible.